Many distraught Democrats and members of the press (but I repeat myself) have called for abolishing the Electoral College. Senator Barbara Boxer went so far as to introduce a bill to end the Electoral College on November 15 following the election.
I have yet to hear the call for the next logical step, to abolish the U.S. Senate to provide us with a pure representational and direct democracy. I humbly submit that the same reasoning applies to abolishing both. I did not hear Sen. Boxer call for the ending of the Senate, even though her retirement would mean she has nothing personally to lose.
Yet both the Senate and Electoral College subvert direct democracy. Don’t they?
Hillary Clinton won the popular vote by over 2.2 million votes (64,654,445 to 62,418,792 according to Cook Political Report). College students, professors, and unbiased media professionals wept, tore their shirts and pulled their hair at the thought of President Donald Trump.
“This is a sad day for democracy!” they cried. “Abolish the Electoral College that would so subvert the will of the American people!” “This is not how democracy is supposed to work.”
Yet this is exactly how our constitutional republic was designed to work by the Founding Fathers. Sorta.
The first place to turn for understanding what went into the thinking behind the Constitution, which established the Electoral College in Article II, section 1, is that contemporaneous advertising blitz of 1788 we now call The Federalist Papers. Penned variously by James Madison (father of the Constitution and Bill of Rights), Alexander Hamilton and John Jay under the pen name “Publius”, these tracts were published to explain and garner public support for the work-in-progress Constitution.
Disappointingly, the tract directly addressing the Electoral College (Federalist 68) is not all that helpful. Alexander Hamilton explained why the Electoral College process is superior to popular voting in what was an overly-optimistic view of the electors themselves:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
Unfortunately, the electors remain anonymous to most voters. We are unable to evaluate their discernment, but that is not an issue since they almost always vote for the candidate they are pledged to. Twenty-six states have laws which require electors to vote for their specific candidate. Since electors are selected by the political parties prior to the election, and the position is often a reward for faithful service to the party, defections are rare.
Hamilton* viewed the election of a short-term assembly of electors by popular vote as a preventative against foreign involvement or regional popularity.
Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.
Hamilton’s vision of electors never came to pass, and the Constitution (and even the Twelfth Amendment which changed how electors vote) has never been faithfully followed. Regarding the election of Abraham Lincoln in 1860, Walter Bagehot, in his seminal 1894 work The English Constitution (not to be confused with the U.S. Constitution, as it is not a single document), observed:
It was intended that the deputies when assembled should exercise a real discretion, and by independent choice select the president. But the primary electors take too much interest. They only elect a deputy to vote for Mr. Lincoln or Mr. Breckenridge, and the deputy only takes a ticket, and drops that ticket in an urn. He never chooses or thinks of choosing. He is but a messenger—a transmitter; the real decision is in those who choose him—who chose him because they knew what he would do.
The Twelfth Amendment changed the way electors voted from having the winner in the electoral count be president and the runner-up named vice president; the two offices are now voted on separately. With the advent of the two-party system after George Washington’s terms, and rancorous divisions between the two winning candidates, the original plan was deemed unworkable. The first example of this occurred early on, as John Adams, Federalist Party, was the second president and Thomas Jefferson, the opposition Democratic-Republican party, became vice president. Jefferson and James Madison had formed the new party to oppose the policies of the Federalist party (and Jefferson).
Imagine today a President Reagan and Vice President Carter. Or worse (perhaps) President Trump and Vice President Clinton.
Given that the Electoral College has never worked as intended in the Constitution, what keeps us from abolishing it as a failed experiment of well-intentioned but overly-optimistic dead white males?
The answer is found in James Madison’s (or possibly Hamilton’s) Federalist No. 62 regarding the Senate. The House of Representatives was established as a representative body with proportional representation based upon population. The Founding Fathers were aware of the problems this presented; for example, it is for this reason Blacks were designated 3/5 of a person, to dilute the southern states’ power in the House by diminishing the census count for non-voting slaves. Even so, southern states dominated the federal government until 1861.
The Senate was another check against some states having greater power due solely to their populations. Publius wrote that while states should have representation proportional to their population there were other considerations:
If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation.
Why was there need for both an equal and proportional representation in the federal government?
A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States.***
In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.
Much has been made of the fact that Hillary Clinton won the popular vote by at least 2.1 million votes. Yet an examination of just two states shows the wisdom of the Founders in setting up both a House and Senate, as well as the Electoral College. Clinton won California by 3.9 million votes, and New York state by 1.5 million votes. If you add just Illinois to the mix, you add another 942,000 vote victory for Clinton.
California alone could have won a popular election for Clinton given her overwhelming victory there.
The votes in these three states would have overwhelmed the votes in less populous states, and California would essentially be in the position of kingmaker every four years. In Los Angeles County alone Clinton got over 1.2 million more votes than Trump.
How would a state like Idaho (with about 700,000 votes cast), or North Dakota (about 350,000 votes) have had any relevance to the election of a president who would help determine their future? Would a candidate even bother to take their concerns into account, or try to win their votes? North Dakota is a major contributor to our economy with the oil fields booming (in April it produced more oil than in 2004), and it is important to their economy and citizens how the national government handles things like permits, leases, as well as any administrative policies which impact oil and gas production, transportation, taxes, etc.
The Electoral College is based in large part on the same theories today as the Senate. Electors are apportioned not only by the number of the population-based House members but Senate seats (435 for House, 100 for Senate, and 3 for the District of Columbia). Thus, states with a small population also have at least three electors no matter their population. They matter. So much so that candidate Barack Obama visited fifty-seven states during the 2008 campaign.
The Electoral College system forces a different strategic and tactical plan by candidates. They cannot ignore the “flyover” states to just campaign in the most populous on the coasts and thereby secure victory. Some swing states become critical to winning, elevating them to an unnatural position of political prominence (such as Ohio and Florida). But without our system, presidential elections would solely be based upon the interests of a few populous states.
If the Electoral College should be abolished, because it does not accurately reflect the popular vote, then the Senate should also be abolished. Why should Wyoming (population just north of 586,000) have a voice equal to California (over 39 million folks) in the Senate, the world’s greatest deliberative body?
Let’s carry this through to the logical conclusion if we only want popular votes to matter. Abolish the Senate as undemocratic! It gives those ignorant hayseed states clinging to their bibles and guns too much federal power. Let the coastal elites decide!
*It is more than ironic that a Broadway actor portraying Hamilton would accuse a vice president elect prior to taking office of not being faithful to traditions even as Democrats voice opposition to Hamilton’s values and inalienable rights.